Tuesday, January 26, 2021

President Biden Executive Orders Repealing President Trump Reforms

The following is an Email from Reeves & Dola, LLP. It details some of the Executive Orders put in place by President Biden. The effect of these EOs is to place more power in the hands of regulatory agencies.  The Email is re-published with permission.

President Biden Immediately Revokes Trump Executive Orders on Regulatory Reform; Orders Modernization of Regulatory Review

On his first day in office, President Biden executed 16 Executive Orders and Actions covering a wide range of issues. Included among these actions is the Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulations (the "Biden Revocation EO"), which immediately revokes several Trump directives targeting regulatory reform. Citing the need to effectively tackle the challenges of COVID-19, economic recovery, racial justice, and climate change, the Biden EO "revokes harmful policies and directives that threaten to frustrate the Federal Government's ability to confront these problems, and empowers agencies to use appropriate regulatory tools to achieve these goals."

This Biden Revocation EO revokes the following Trump Executive Orders:

  • EO 13771, dated January 30, 2017 (Reducing Regulation and Controlling Regulatory Costs) - requiring, among other things, federal agencies to identify two regulations to eliminate for every one new regulation issued (known as the "two-for-one rule").
  • EO 13777, dated February 24, 2017 (Enforcing the Regulatory Reform Agenda) - requiring federal agencies to each establish a Regulatory Reform Task Force to implement regulatory reform initiatives and policies.
  • EO 13875, dated June 14, 2019 (Evaluating and Improving the Utility of Federal Advisory Committees) - requiring federal agencies to evaluate the need for current advisory committees established under the Federal Advisory Committee Act and to eliminate at least one third of such committees.
  • EO 13891, dated October 9, 2019 (Promoting the Rule of Law through Improved Agency Guidance Documents) - requiring federal agencies to treat guidance documents as non-binding in law and in practice, take public input into account in formulating guidance documents, and prohibiting agencies from imposing legally binding requirements on the public except though regulation and only after appropriate process, except as authorized by law or contract.
  • EO 13892, dated October 9, 2019 (Promoting the Rule of Law through Transparency and Fairness in Civil Administration Enforcement and Adjudication) - stating that no person should be subjected to civil administrative enforcement action or adjudication absent public notice of both the enforcing agency's jurisdiction over the conduct and the legal standards applicable to the conduct, and requiring agencies to afford regulated parties the safeguards described in the order, above and beyond those that the courts have interpreted under the Fifth Amendment's Due Process Clause.
  • EO 13893, dated October 10, 2019 (Increasing Government Accountability for Administrative Actions by Reinvigorating Administrative PAYGO) - requiring agencies to take steps to offset and curtail their administrative costs pursuant to the Office of Management and Budget's 2005 "Administrative pay-as-you-go" mechanism.

The Biden Revocation EO requires the Office of Management and Budget ("OMB") and agency heads to "promptly" take steps to rescind any orders, rules, regulations, guidelines, or policies, or portions thereof, implementing or enforcing the above-listed Trump EOs. In addition, the Biden EO abolishes all personnel positions, committees, task forces, or other entities established pursuant to the Trump EOs, including the regulatory reform officer positions and regulatory reform task forces.

On the same day, President Biden issued a memorandum to heads of executive departments and agencies regarding modernizing regulatory review (the "Memorandum"). Referencing the massive global pandemic, a major economic downturn, systemic racial inequality, and the undeniable reality and accelerating threat of climate change, the Memorandum states that "it is the policy of [the Biden] Administration to mobilize the power of the Federal Government to rebuild our Nation and address these and other challenges." The Memorandum directs the Director of OMB to "begin a process" that will ultimately produce recommendations for improving and modernizing regulatory review, including "concrete suggestions on how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations."

It remains to be seen exactly how these new executive directives and the various revocations will impact the agencies and industry. We will monitor these developments and keep you updated.
The above alert is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this alert does not establish an attorney-client relationship.

Questions about this alert may be directed to:

Johanna Reeves: 202-715-9941, jreeves@reevesdola.com
Katherine Heubert: 202-715-9940, kheubert@reevesdola.com
About Reeves & Dola
Reeves & Dola is a Washington, DC law firm that specializes in helping clients navigate the highly regulated and complex world of manufacturing, sales and international trade of defense and commercial products. We have a deep understanding of the Federal regulatory process, and use our expertise in working with a variety of Federal agencies to assist our clients with their transactional and regulatory needs.
Reeves & Dola, LLP
1775 I Street, NW, Suite 1150
Washington, DC 20006

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